IN RE DEANGELO ANTONIO WHEELER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 20, 2007
Petitioner-Appellee,
v
No. 267091
Wayne Circuit Court
Family Division
LC No. 03-420464-DL
DEANGELO ANTONIO WHEELER,
Respondent-Appellant.
Before: Cooper, P.J., and Cavanagh and Meter, JJ.
COOPER, P.J. (concurring).
Respondent appeals as of right his adjudication for assault with intent to commit criminal
sexual conduct. The majority affirms and I agree with the outcome, but write separately to note
two differences in analysis.
The first difference relates to the issue of the victim’s mother’s testimony that the victim
had been diagnosed with the sexually transmitted disease (STD) trichomonas. I agree with the
majority that the testimony was relevant to establish why the victim’s mother began questioning
the victim about possible causes of the STD, which led to the victim stating that she had been
assaulted. Likewise, I accept that this reasoning may make a valid case that the testimony was
not offered to prove the truth of the matter asserted. However, the trial court should have
weighed this evidence for admissibility under MRE 403.1 Had it done so, I believe it might have
found this highly inflammatory hearsay to be more prejudicial than probative. I note also that
the whole issue could have been avoided by simply bringing in evidence that the victim actually
did contract the STD.
The second difference in analysis relates to the second allegation of hearsay. I agree with
the majority that the mother’s testimony about what her daughter told her about the assault was
properly admissible under MRE 803A. Although the majority opinion notes that the
1
MRE 403: Although relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or
by considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.
-1-
admissibility of the challenged statement rests on MRE 803A, the majority also suggests that an
argument could be made that the statement qualified as an excited utterance. I disagree, and
would find that, given the particular facts of this case, the bounds of the excited utterance rule
cannot possibly stretch so far as to include the statements at issue. I note also that during oral
arguments in this matter, the prosecutor agreed that the challenged statements did not qualify as
excited utterances.
MRE 803(2), the “excited utterance” rule, provides that: “[a] statement relating to a
startling event or condition made while the declarant was under the stress of excitement caused
by the event or condition” is not excluded by the hearsay rule. Rule 803 includes twenty-four
exceptions to the hearsay rule; twenty-three are narrowly tailored to allow in a particular class of
evidence based on some indicator of reliability that is sufficient to overcome the presumption
against hearsay as unreliable evidence, and one is a catch-all provision that allows a trial judge to
use structured discretion in allowing evidence. The depth and breadth of the exceptions2 and
exclusions indicate that they are intended to cover the spectrum of allowable hearsay. It seems
logical to conclude then that they are not to be stretched beyond the limits of rational application
if a particular statement cannot reasonably be fit into any of the categories. However relevant
and probative a statement might be, if the rules are circumvented to allow it, then the rules will
cease to protect the integrity of judicial proceedings.
Here, the hearsay statements were made by the victim to her mother one and a half to two
months after the assault. Arguably, a victim of assault may continue to suffer from the “stress . .
. caused by the event or condition” for a very long time, indeed possibly forever. However, it
does not follow that a statement made about an event two months after the event carries the same
indicia of reliability and truthfulness as a statement made when in more direct reaction to the
startling event. Although the time lapse is not of itself dispositive, People v Smith, 456 Mich
543, 550; 581 NW2d 654 (1998), logically there must be some limit on how long is too long.
The point of limiting the time during which a statement might qualify as an excited
utterance is to separate the fabrications from the unfettered reactions, and that means examining
the circumstances and weighing the “possibility of fabrication” against the possibility that “the
statement was made out of a continuing state of emotional shock precipitated by the assault.”
People v Layher, 238 Mich App 573, 584; 607 NW2d 91 (1999) (Finding the statements at issue
were excited utterances despite the passage of time between the assault and the statements, given
the specific facts and circumstances of the case.)
The victim in Layher was just five years old when she was assaulted, and this factor
weighed significantly in the finding that her statements about the assault were excited utterances.
I would note that MRE 803A serves this same interest of justice for very young victims, who
may delay beyond the logical bounds of the excited utterance range before disclosing abuse.
That rule exists because children may and do delay such reporting, for all of the reasons
recounted in Layher.
2
MRE 804 adds seven more exceptions to the hearsay rule, differing from MRE 803 in that the
witness must be unavailable for these exceptions to apply.
-2-
I would also note that the age of the victim is not the only relevant factor in determining
how long the period for excited utterances might extend. In People v Straight, 430 Mich 418,
426; 424 NW2d 257 (1988), for example, where the victim was only four years old at the time of
the assault, our Supreme Court noted: “The difficulty in this case arises because the statements
at issue were made approximately one month after the alleged assault, immediately after a
medical examination of the child's pelvic area, and after repeated questioning by her parents.”
Conversely, in Layher, the first statements the victim made about the abuse were spontaneous:
complainant's mother, Adeline Layher, testified that when complainant was five
years old, she sent her into the house to retrieve a clothes basket. When
complainant did not return, Layher went inside the house and found complainant
naked and crying behind a door. Over objection, Layher testified that
complainant told her immediately after the incident, both at home and at the
hospital, that "her uncle had touched her in the wrong places," . . . [Id. at 582.]
As the majority correctly notes, this victim did make additional statements during a therapy
session one week after the incident, and defendant did object to those statements. In rejecting
defendant’s argument that the time lag should preclude admission of the hearsay statements, the
Court distinguished Straight, finding that “there is no record evidence to support his
[defendant’s] claim that Layher or the therapist repeatedly and emotionally asked complainant
what happened until she answered.” Id. at 584. It is this distinction that I find relevant here.
This case is more factually analogous to Straight than to Layher, because the victim here
was questioned by her mother after the diagnosis of STD, rather than spontaneously telling the
story as part of an emotional outburst that is clearly a reaction to a traumatic event.
Here I would find, despite the victim’s age, eight years old at the time of the assault, that
two months is simply too long a delay to support the inference that the statement was made out
of a continuing state of emotional shock, particularly where, as here, the victim did not
spontaneously report the abuse. To hold otherwise would turn a narrow gap in the rule into a
gaping loophole.
Nonetheless, because the evidence was still admissible under MRE 803A, there is no
prejudice to the defendant, and I would affirm.
/s/ Jessica R. Cooper
-3-
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